GANTZ v. PEOPLE

The opinion of the court was delivered by: JEFFREY WHITE, District Judge

ORDER OF DISMISSAL WITH LEAVE TO AMEND

INTRODUCTION

Petitioner Gordon H. Gantz has filed a habeas corpus petition
pursuant to 28 U.S.C. § 2254 challenging the constitutional
validity of his state conviction. Petitioner has paid the filing
fee.

BACKGROUND

According to the petition, Petitioner was convicted by a jury
of making a false bomb threat in San Francisco Superior Court and
ultimately sentenced to a term of three years probation on April
27, 2003. Petitioner unsuccessfully appealed his conviction to
the Court of Appeal and the Supreme Court of California, which
denied review in 2005. Petitioner filed the instant petition on
July 1, 2005. The petition names "The People" as respondent.

DISCUSSION

A habeas petitioner must name the "person who has custody over
him" as the respondent. See 28 U.S.C. § 2242; see also
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996)
(quoting Rule 2(a) of the Rules Governing Habeas Corpus Cases
Under Section § 2254). Failure to name the petitioner's custodian as a
respondent deprives the federal court of personal jurisdiction.
See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th
Cir. 1994). The proper respondent will depend on the facts of the
petitioner's custody. The proper respondent in the usual case of
a person currently in custody is either the warden of the
institution in which the petitioner is incarcerated or the chief
officer in charge of state penal institutions. Rules Governing §
2254 Cases, Rule 2(b), 28 U.S.C. foll. § 2254, Advisory
Committee's Notes. Where the petitioner is in probation or
parole, he may name his probation or parole officer "and the
official in charge of the parole or probation agency, or the
state correctional agency, as appropriate." Id. In other cases,
the petitioner may name the state attorney general. See id.;
Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997). Here,
the appropriate respondents would be Petitioner's probation
officer and the official in charge of the probation agency or
the state correctional agency, as appropriate. Ortiz-Sandoval,
81 F.3d at 894.

Petitioner did not name the appropriate respondents in his
petition for writ of habeas corpus. He must do so or the action
must be dismissed for lack of personal jurisdiction. Accordingly,
the petition for writ of habeas corpus is dismissed with leave to
amend so that Petitioner may name the proper respondents in his
petition. The amended petition must be filed no later than
thirty (30) days from the date of this order. Failure to name a
proper respondent or failure to file an amended petition by the
deadline will result in the dismissal of this action.

CONCLUSION

For the foregoing reasons and for good cause shown:

1. This action is dismissed with leave to file an amended
petition within thirty (30) days of the date of this order in
which Petitioner presents only claims for violations of his
rights under the laws, treaties, or Constitution of the United
States. Petitioner must notify the Court in his petition whether
each such claim has been presented to the California Supreme Court. The amended petition must name the
appropriate respondents to the petition. The amended petition
must contain the caption and civil case number used in this order
and the words AMENDED PETITION on the first page. Because an
amended petition completely replaces the original, Petitioner
must include in it all the claims he wishes to present. See
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert.
denied, 113 S. Ct. 321 (1992). Petitioner may not incorporate
material from the original petition by reference. Failure to file
an amended petition by the deadline as set forth above will
result in dismissal of this action.

2. It is Petitioner's responsibility to prosecute this case. He
must keep the Court informed of any change of address by filing a
separate paper with the clerk headed "Notice of Change of
Address." He must comply with any orders of the Court within the
time allowed, or ask for an extension of that time. Failure to do
so may result in the dismissal of this action for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

20051128 ...

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